Category: 2nd Amendment

So says a federal district court, upon considering Chicago’s law that bars licenses from anyone convicted for any gun violation, no matter how trivial or minor.

The Delaware Supreme Court has ruled that one can’t be charged for possessing a concealed knife or other weapon in one’s home if that weapon is possessed for a lawful purpose. I agree that the right to keep and bear arms is not limited to firearms, and should cover air guns, stun guns, knives, or any other weapon that has utility for defending oneself. Another interesting thing to note is that Delaware’s right to keep and bear arms provision is a recent one, having been passed in 1987. Anti-gunners keep telling us that the Right to Keep and Bear arms is an anachronism, but when put to the ballot, it seems to be a right the people still believe is important.

You can listen to the oral arguments here. At first I was a little worried, because the questioning of the panel seemed to be all over the place, and asking difficult questions of Mr. Gura and Mr. Cooper which to me seemed to be outside the scope of what the courts can do, but I guess reflected some concern from the panel about carrying in bars, etc.

But then the grilling of the Illinois Attorney started, and things started, to put it mildly, looking up. Go have a listen. Keep in mind, the courts can only really say Illinois’ statute is constitutional or not. It would be up to the legislature to craft a bill that would pass constitutional muster, and it should be noted a bill is already introduced that would accomplish that, and has very near the votes needed for passage.

Now if the Illinois law is tossed on Constitutional grounds, I don’t believe Illinois would be permitted to enforce it. The question is, will the legislature want to “settle out of court,” so to speak, and pass a right-to-carry bill now, rather than risk the state, essentially, going constitutional carry. Would our side be willing to take the deal? Risk is inherent for both sides. What if the courts opinion hints at may-issue being constitutional? What if we lose outright? For them, what if it invalidates the law, and essentially anyone who can legally possess a gun in Illinois can carry?

Also interesting is whether the disposition of Judge Posner to the Right to Keep and Bear Arms has changed. It seems from this case he may have warmed up to the idea.

Days of our Trailers has more.

Ever notice that the few publicly disclosed Hollywood NRA members have a disproportionate involvement in decently made historical and/or patriotic films? Funny how that seems to be true. We settled on NRA board member Tom Selleck’s Ike – Countdown to D-Day a couple of days ago. It also has NRA member Gerald McRaney.

This wasn’t the only recent NRA member entertainment we have enjoyed. We last caught McRaney in Jericho.

As we were surfing through movies to watch on Netflix last night, we stopped on Netflix’s “Most Popular” tab. The first show listed was NRA board member R. Lee Ermey’s Lock N’ Load. That’s called winning right there.

The challenge to North Carolina’s emergency powers provision that could essentially ban guns will not be appealed, meaning the ruling tossing it will stand. That seems to be the prudent move from North Carolina officials, given that appeal would just be a waste of taxpayer money.

This is going to be one of those posts where I shake the ant farm a bit, because I think this is one cases where the prejudices of the left and right will conspire to make a ridiculous mess out of something that should really be quite simple. But people being the way people are, I accept that this is a subject of great complexity, so let me play devil’s advocate for a bit.

I tend to think the right to bear arms, being fundamental, applies to all people, but with a federal judiciary that wants to drag the whole “INTERMEDIATE SCRUTINY MEANS A WEAK RIGHT TO BEAR ARMS!” meme forward, this is a less damaging opinion on the subject than I could have imagined.

If the right’s “central component,” as interpreted by Heller, 554 U.S. at 599, is to secure an individual’s ability to defend his home, business, or family (which often includes children who are American citizens), why exactly should all aliens who are not lawfully resident be left to the mercies of burglars and assailants? That must be at least one reason behind the wave of challenges to § 922(g)(5). But courts must defer to Congress as it lawfully exercises its constitutional power to distinguish between citizens and non-citizens, or between lawful and unlawful aliens, and to ensure safety and order.

Why must the courts defer to Congress? What special insights does Congress have as to the constitutionality of laws? As offensive  as it may be to conservative populism, I’ve never been able to reconcile the idea of fundamental rights with the idea of rights of citizenship as it currently stands. For instance, this quote from the opinion, citing precedent in the 1950 case of Johnson v. Eisentrager:

The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.

I think this is only true, because as a society, we’ve had a poor concept of rights. If a right is fundamental, then it is fundamental; it’s exercise cannot be infringed by any dictate of Congress, or the Executive, or the states (by the 14th Amendment). If a right is a citizenship right, rather than a natural one, such as voting, then it is not a true, inviolable natural right, but one exercised by a citizen, subject to the laws regarding citizenry.

I think whether the right to keep and bear arms is a right of citizenship, or a fundamental natural right is a debate worth having. But to a large degree, the courts have already declared it a fundamental one. I happen to believe that is correct, and it should have consequences, conservative populism railing against illegal immigration, or liberal dogma railing against gun right be damned. One of those consequences is that all individuals have a right self-preservation, and thus a right to the tools necessary to protect those ends.

I think if you want to ban firearms possession, mere possession, from illegal aliens, the government should have to prove, beyond a reasonable doubt, two things; that the possession was in furtherance of an unlawful act (e.g. that the illegal immigrant was here robbing banks, dealing drugs, etc) and that he did indeed possess the weapon in furtherance of those acts. That’s a far cry from, say, conducting an immigration raid of a business in a shitty neighborhood, and finding a pistol in the personal possession of one of the of the unlawful immigrants who was busted. I have no issues with prosecuting people who are here illegally and deporting them, but a fundamental right is a fundamental right, and the idea that the right to keep and bear arms is a fundamental right has consequences. One of those is that is a right of all people, regardless of citizenship or immigration status. If you want to prosecute someone for gun possession, then you need to prove their possession was in furtherance of an unlawful end, and not merely possessed for lawful self-protection.

Justice Kagan? Perhaps this portends some positive news for the Second Amendment, but I wouldn’t count on it.

This is actually a more significant victory than I originally had reported. Usually I take my time on these things, but yesterday was insane. I am in the process of refinancing my mortgage, which will reduce my monthly payment and help me pay off the house a few years sooner. I figured as long as Uncle Sugar is running the printing presses flat out I might as well cash in.

But either way, there’s been better coverage of it. Clayton notes that it’s a pretty significant victory that the Illinois Supreme Court essentially remanded for consideration as to whether these rifles were commonly used. The answer to that is yes. Even in Heller II, the two judge majority on the three judge panel ruled that they were in common use, just that they were unprotected regardless.

After reading the opinion, I believe the court’s dismissal on vagueness grounds was a bit poorly reasoned. I think there’s a good case to be made that many assault weapons bans are, in fact, vague, because they ban features that are not well defined. That’s proven itself again and again in California, and I just don’t think when you’re dealing with a protected activity, like owning firearms, that the Courts ought to tolerate this kind of vagueness.

Dave Hardy notes a few interesting things on the case as well, and we’re certainly glad he’s out of the hospital.

The Illinois Supreme Court issued an opinion in the case challenging the Cook County ban on “assault weapons.” Word has it that the just released opinion remands on equal protection and due process grounds. No word whether the Second Amendment is involved yet. Looks like a punt. More to come as it comes. Check this post for updates.

UPDATE: Opinion here. The case remands on Second Amendment grounds, but upholds the dismissal for due process and equal protection. From the summary:

However, as to the second amendment issue, the supreme court took a different view. At this early stage of the litigation, in the procedural posture of this case, it cannot be said conclusively whether “assault weapons” as defined by the ordinance fall within or outside the scope of the rights protected by the second amendment. This question requires an empirical inquiry that goes beyond the scope of both the record in the current litigation and judicial notice. The supreme court said that, at this point in the lawsuit, it cannot be said that no set of facts can be proved that would entitle the plaintiffs to relief. Neither has the County had an opportunity to present evidence to justify a nexus between the ordinance and the governmental interest it seeks to protect. Therefore, the circuit court’s dismissal of the complaint count based on the second amendment was improper and was reversed, as was that part of the appellate court’s judgment which affirmed the dismissal.

Pretty much a punt on the Second Amendment issue. They essentially remand the case back to lower court to undergo a trial. This is a small win, given that the lower court originally approved Cook County’s motion to dismiss.

UPDATE: From the Chicago Tribune. I should note that I am not optimistic about success with assault weapons bans as things stand right now. The judiciary is quite hostile to gun rights just generally. I think the odds of finding judges to strike down bans on scary looking guns is long.

A federal court in Massachusetts has struck down Massachusetts’ practice of denying pistol licenses to permanent resident aliens. I wonder whether our opponents have noticed while they’ve been busy exploiting another shooting, we’ve still been quietly winning victories. Is it just me, or does it seem like we’re having more success in District Court these days?